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Criminalising fabricated images of child pornography: a matter of harm or morality?

Published online by Cambridge University Press:  02 January 2018

Suzanne Ost
Affiliation:
Law School, Lancaster University

Abstract

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 2010

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References

1 For example, the provision that introduced a Sentencing Council for England and Wales, which imposes guidelines for judges (s 118), and the provision which removed the requirement of the defendant's consent to the use of a live link for a preliminary hearing of her/his case (s 106). See ‘Judges group attack sentence plan’ BBC News (25 March 2009), available at http://news.bbc.co.uk/1/hi/uk/7963321.stm; A Turner ‘Criminal justice legislation’ (2010) 174(12) Criminal Law and Justice Weekly 162; ‘Coroners and Justice Bill’ (2009) 65 Magistrate 13; ‘Thousands of criminal suspects to be tried in virtual courts’The Times 18 May 2009; Law Society ‘Law Society warns against removal of consent to hearings by “virtual court” ’ Press Release (27 January 2009), available at http://www.lawsocietymedia.org.uk/site.php?s=1&content=35&press_release_id=1034&mt=34. Unsurprisingly, unsuccessful amendments to the Coroners and Justice Bill (C&JB) to change the law on assisted suicide also attracted media attention. See, for example, ‘Hewitt seeking suicide law change’ BBC News (20 March 2009), available at http://news.bbc.co.uk/1/hi/uk_politics/7953570.stm; ‘Hewitt leads call to protect suicide helpers’The Independent 20 March 2009; ‘Assisted suicide ban forcing terminally ill to die early, Lords told’The Guardian 2 June 2009; ‘Change in assisted dying law rejected’ BBC News (7 July 2009), available at http://news.bbc.co.uk/1/hi/health/8139621.stm.

2 Criminal Justice and Immigration Act 2008 (CJIA), s 63. Extreme pornographic images are defined as ‘pornographic images that depict acts which threaten a person's life, acts which result in or are likely to result in serious injury to a person's anus, breasts or genitals, bestiality or necrophilia’. See Explanatory Notes to the Criminal Justice and Immigration Act 2008 (2008), para 43; CJIA, s 63(7); C McGlynn and E Rackley ‘Criminalising extreme pornography: a lost opportunity’[2009] Criminal Law Review 245.

3 See below nn 15, 16, 67 and 70.

4 Home Office Consultation on the Possession of Non-photographic Visual Depictions of Child Sexual Abuse (London: Home Office, 2007).

5 Ibid, p 5.

6 Ibid, p 1.

7 As I will discuss, the exception to this is where the NPPIC is a manipulated real photograph of child pornography or depicts real child sexual abuse.

8 For example, at the beginning of the second reading of the C&JB in the House of Commons, the Secretary of State, Jack Straw, stated that: ‘In the past 10 years, we have developed much greater protection for children from sexual abuse, but we must keep the law up to date with technological changes. The Bill therefore provides for a new offence of possession of non-photographic images of child sex abuse, building on the existing law in respect of indecent photographs’: Hansard HC Deb, col 35, 26 January 2009.

9 See, eg, Kleinhans, M Criminal justice approaches to paedophilic sex offenders’ (2002) 11 Social and Legal Studies 233.CrossRefGoogle Scholar

10 See Ost, S Child Pornography and Sexual Grooming: Legal and Societal Responses (Cambridge: Cambridge University Press, 2009) pp 1011.CrossRefGoogle Scholar

11 By the phrase ‘real child pornography’, I mean material which features the sexual abuse of real children.

12 When referring to possessors of NPPIC, I use the masculine pronoun throughout this paper since the existing research indicates that the majority of individuals who use child pornography are male (see Seto, MC and Eke, AW The criminal histories and later offending of child pornography offenders’ (2005) 17(2) Sexual Abuse: A Journal of Research and Treatment 201 at 203).CrossRefGoogle ScholarPubMed However, this is certainly not to say that only men engage in such activities. Note the charges of sexual assault and making, distributing and possessing indecent images of children brought against nursery worker Vanessa George in 2009, who subsequently pleaded guilty to the offences and received an indeterminate sentence. One of the two co-defendants in the case was also female. For a history of the case, see ‘Nursery school worker on charges of child porn meets parents' anger face to face’The Guardian 11 June 2009; ‘The hidden truth’The Guardian 12 June 2009; ‘Nursery worker names sex victims’ BBC News (29 October 2009), available at http://news.bbc.co.uk/1/hi/england/devon/8331284.stm; ‘Sentencing date for nursery worker paedophile’The Independent 11 November 2009; ‘Vanessa George jailed for child sex abuse’The Guardian 15 December 2009. See also ‘It's not just men who abuse’The Guardian 10 November 2009. For clarity of exposition, I use the feminine pronoun when referring to the child.

13 Mill, JS On Liberty’ in Mill, JS (ed) Utilitarianism, On Liberty, Considerations on Representative Government (London: Orion, 1993) p 69.Google Scholar

14 That is, Mill's avoidance of harm principle: ‘The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’: ibid, p 78.

15 Under s 1 of the PCA, it is an offence to take or permit to be taken an indecent photograph of a child, to distribute or show such a photograph, to have such a photograph in one's possession with a view to distribution, or to publish any advertisement that conveys that the advertiser distributes or shows such photographs or intends to do so.

16 The CJA criminalises the possession of indecent photographs of children (s 160).

17 Section 62(3).

18 Above n 2.

19 See R v Graham-Kerr[1988] 1 WLR 1098.

20 Section 62(6)(a).

21 Section 62(7).

22 Section 65(2)(a). Or data capable of conversion into an image (s 65(2)(b)).

23 CJIA, s 63(8); Explanatory Notes, above, n 2, para 459.

24 Section 65(8).

25 That the individual had a legitimate reason for possessing the image, or that he had not seen the image and had no reason to suspect it was a prohibited image, or that the image was sent to him without any request, and that he did not keep it for an unreasonable time (s 64), and see CJA, s 160(2)(a), (b) and (c).

26 Section 66. The maximum sentence on summary conviction is 6 months' imprisonment.

27 Home Office, above n 4, pp 4 and 9.

28 Section 65(3). An ‘image which forms part of a series of images contained in a recording of the whole or part of a classified work’ is also excluded from the ambit of the offence. See s 63.

29 ‘It is the case that cartoons, drawings and material created entirely by manipulation of computer software do not harm real children in the same way as taking indecent photographs of children….’: Home Office, above n 4, p 4.

30 ‘The material causing concern depicts serious child sexual abuse, going beyond the indecency threshold for photographs which is appropriate where real children are, or appear to be, involved': ibid, p 5.

31 See Ashcroft v Free Speech Coalition 535 US 234 (2002); Ost, above n 10, pp 206–207; Duncan, K Child pornography and First Amendment standards’ (2007) 76 Mississippi Law Journal 677 at 684.Google Scholar

32 § 1466A(a)(1). See also § 1466A(a)(2), which criminalises ‘an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital–genital, oral–genital, anal–genital, or oral–anal, whether between persons of the same or opposite sex’ and lacks ‘serious literary, artistic, political, or scientific value’.

33 Hansard HC Deb, col 37, 26 January 2009.

34 See also, in the context of the offence of possessing extreme pornography, McGlynn and Rackley, above n 2, at 252.

35 Feinberg, J The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford University Press, 1985) p 1.Google Scholar

36 Ibid, p 3.

37 Ibid, ch 8.

38 Ibid, pp 58–59.

39 Knuller v DPP (1972) 56 Cr App R 157; R v Gibson[1990] 2 QB 619; R v Hamilton[2007] EWCA Crim 2026, [2008] 1 All ER 1103.

40 Indecent Displays (Control) Act 1981, s 1(1).

41 Postal Services Act 2000, s 85(3). I am not including offences relating to indecent photographs of children here. Whilst they exist within a moral framework of indecency, they are aimed at targeting a harm rather than mere offence. See further Ost, above n 10, pp 83–89.

42 See generally Hart, Hla Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 45.Google Scholar

43 See Taylor, M and Quayle, E Child Pornography: An Internet Crime (Hove: Brunner-Routledge, 2003) pp 9091.Google Scholar The importance of the behaviour to the actor and whether it has a social utility are two standards that Feinberg suggests in order to assess the reasonableness of the offensive conduct (Feinberg, above n 35, pp 37–38).

44 Ibid, pp 60–71.

45 Ibid, p 68.

46 A possible exception could be profound offence caused to individuals who have themselves been victims of pornography and sexual abuse when they were children, but I do not anticipate that this would normally be the reason why the possession of NPPIC could cause most individuals to experience profound offence.

47 Feinberg gives the examples of racist mockery and the viewing of abusive adult pornography in a private setting as exceptional cases where bare knowledge offence can wrong the individual offended who is a member of the insulted group: Feinberg, above n 35, pp 69–70.

48 In the words of Hart: ‘a right to be protected from the distress which is inseparable from the bare knowledge that others are acting in ways you think wrong, cannot be acknowledged by anyone who recognises individual liberty as a value’: Hart, above n 42, p 4. See also Mill, above n 13, pp 150, 152 and 167.

49 Feinberg, above n 35, p 69. The principle of legal moralism is that it is appropriate to prohibit immoral conduct even when it does not cause harm or offence to others; that is, ‘victimless’ immorality is a matter the law should be concerned with, because it is one of the functions of law to enforce morality.

50 See, for instance, Feinberg, J The Moral Limits of the Criminal Law: Harmless Wrongdoing (Oxford: Oxford University Press, 1988) p 145.Google Scholar For an absorbing liberal defence of legal moralism, however, see Moore, M Placing Blame (Oxford: Clarendon Press, 1997).Google Scholar

51 When referring to a theory of social rights which would enable all individuals to demand state action against any individual who does not act ‘in every respect exactly as he ought’ and thus weakens and demoralises society, Mill states that ‘so monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify’: Mill, above n 13, p 158.

52 McGlynn and Rackley, above n 2, at 252.

53 OPA, s 1. Although it should be noted that when this paper was at proof stage, a Ministry of Justice Circular was published in which it is stated that the definition of the concept of ‘obscene character’ under the new provisions is ‘distinct’ from the ‘technical’ definition under the OPA, which is ‘specifically geared to the concept of publication’: Ministry of Justice, Coroners and Justice Act 2009 (Provisions Coming into Force on 6 April 2010) Circular 2010/06 (2010), para 18. Whilst this might indicate that the deprave and corrupt test will not be employed, I submit that the OPA test may still be looked to for guidance because obscenity is such an ambiguous concept.

54 Home Office Consultation on the Possession of Non-Photographic Visual Depictions of Child Sexual Abuse – Summary of Responses and Next Steps (London: Home Office, 2008) p 11.

55 See also Feinberg, above n 35, p 171.

56 Although whether being corrupted constitutes harm to the individual is a contested issue. See Feinberg, J The Moral Limits of the Criminal Law: Harm to Others (Oxford: Oxford University Press, 1984) p 66.Google Scholar Contrast George, RP Making Men Moral: Civil Liberties and Public Morality (Oxford: Oxford University Press, 1993) pp 226227.Google Scholar

57 DPP v Whyte[1972] AC 849: ‘bad conduct may follow from the corruption of the mind…[but] it is not part of the [deprave and corrupt test] that it must induce bad conduct’ (per Lord Pearson at 864).

58 See Devlin, P The Enforcement of Morals (London: Oxford University Press, 1968).Google Scholar

59 Feinberg, above n 35, p 100. Dworkin defines moral paternalism as ‘the claim that we are entitled to interfere with persons on the grounds that they will be (1) in a morally improved state and (2) that such a state will be better for the individual in question’: Dworkin, GMoral paternalism’ (2005) 24 Law and Philosophy 301 at 308.CrossRefGoogle Scholar

60 Above n 57, at 863.

61 Unless it causes the creator to go on to commit actual child sexual abuse, but, as I discuss below, there is no proof that viewing child pornography has this effect.

62 For arguments that it can be perceived as such, see George, above n 56, p 107.

63 See Mill, above n 13, p 78.

64 ‘Whenever…there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law’: ibid, p 150.

65 Home Office, above n 4, pp i and 5.

66 See R v Beaney[2004] 2 Cr App R (S) 82, para 9; New York v Ferber 458 US 747 (1982), 759; Taylor and Quayle, above n 43, p 31.

67 PCA, s 7(4), as inserted by CJIA, s 69.

68 Home Office, above n 4, p 9.

69 My analysis here is drawn from Ost, above n 10, pp 127–130.

70 See also M Eneman, AA Gillespie and B Carsten Stahl Criminalising Fantasies: The Regulation of Virtual Child Pornography (2009), p 4, available at http://www.cse.dmu.ac.uk/~bstahl/publications/2009_Criminalising_Fantasies_ECIS.pdf. Such an image would be caught by the PCA and CJA offences provided that it looks like a photograph, or is derived from a photograph (s 7(4A) and (7) of the PCA).

71 ‘If the harm in question is very great, then a very small likelihood of its occurrence will do’: Feinberg, above n 50, p 190.

72 See Tolley v JS Fry & Sons Ltd[1931] AC 333.

73 See Youssoupoff v Metro-Goldwyn Mayer (1934) 50 TLR 581 at 587: an individual can be defamed if others are made to think less of her.

74 See Baker, D The moral limits of criminalizing remote harms’ (2007) 10 New Criminal Law Review 370.Google Scholar A remote harm relates to behaviour which is not harmful in itself, but the consequences of the behaviour may be.

75 See Ost, above n 10, pp 117–118.

76 See Persak, N Criminalising Harmful Conduct (New York: Springer-Verlag, 2007) pp 4445 Google Scholar; Harcourt, BE The collapse of the harm principle’ (1999) 90 Journal of Criminal Law and Criminology 109.CrossRefGoogle Scholar

77 I discuss a broader conception of harm in the next subsection.

78 For the same argument in the context of pseudo-images of child pornography, see Ost, above, n 10, p 88.

79 Coroners and Justice Bill Explanatory Notes (London: TSO, 2009) para 857. See also Home Office, above n 4, p 5; Maria Eagle, Parliamentary Under-Secretary of State for Justice Hansard HC Public Bill Committee: C&JB, col 488, 3 March 2009.

80 See Elliott, M, Browne, K and Kilcoyne, JChild sexual abuse prevention: what offenders tell us’ (1995) 19 Child Abuse and Neglect 579 CrossRefGoogle ScholarPubMed (14% of the child sex abusers interviewed stated that they used pornography when developing strategies to approach children). See also AA Gillespie ‘Indecent images, grooming and the law’[2006] Criminal Law Review 412 at 413; Williams, KChild pornography law: does it protect children?’ (2004) 26 Journal of Social Welfare and Family Law 245 at 253–254.CrossRefGoogle Scholar For discussion of the ‘grooming process’, see Craven, S, Brown, S and Gilchrist, ESexual grooming of children: review of literature and theoretical considerations’ (2006) 12 Journal of Sexual Aggression 287 CrossRefGoogle Scholar; Craven, S, Brown, S and Gilchrist, E, ‘Current responses to sexual grooming: implications for prevention’ (2007) 46 Howard Journal of Criminal Justice 60 CrossRefGoogle Scholar; Ost, above n 10, pp 32–39 and 70–81.

81 Section 15.

82 Section 12. In R v Abdullahi[2007] 1 WLR 225, the Court of Appeal interpreted the requirement under s 12 that the act is carried out for the purpose of sexual gratification to apply to a future intended purpose and, thus, provided the individual grooming the child intends to receive gratification from some subsequent behaviour, the offence would be made out.

83 Home Office, above n 4, p 4.

84 Showing such a photograph under s 1(1)(b) of the PCA and possession under s 160 of the CJA.

85 On objectification, see Nussbaum, MC Sex and Social Justice (New York: Oxford University Press, 1999) pp 213239.Google Scholar

86 For an expanded discussion of this argument in the context of real child pornography, see Ost, above n 10, pp 105–107.

87 Explanatory Notes, above n 79, para 861.

88 NSPCC NSPCC Briefing: Coroners and Justice Bill (2009) p 3, available at http://www.nspcc.org.uk/Inform/policyandpublicaffairs/Westminster/briefings/CoronersandJustice_wdf63084.pdf.

89 Kappeler, S The Pornography of Representation (Minneapolis: University of Minnesota Press, 1986) p 52.Google Scholar See also MacKinnon, CA Toward A Feminist Theory of The State (Cambridge, MA: Harvard University Press, 1991)Google Scholar, and the ‘cultural harm’ argument presented in McGlynn and Rackley, above n 2, p 257.

90 See the Canadian Supreme Court case of R v Sharpe[2001] SCC 2: ‘child pornography may change possessors' attitudes in ways that makes them more likely to sexually abuse children. People may come to see sexual relations with children as normal and even beneficial’ (at para 87 per McLachlin CJ).

91 See R v Sharpe, ibid, para 100 per McLachlin CJ.

92 George Howarth Hansard HC Public Bill Committee: C&JB, col 480, 3 March 2009.

93 See Ost, above n 10, pp 110–112. See also Eneman et al, above n 70, p. 7.

94 Wasserman, A Virtual.child.porn.com’ (1998) 35 Harvard Journal on Legislation 245 at 270.Google Scholar

95 See, for instance, Mike O'Brien Hansard HC Standing Committee B: Criminal Justice and Public Order Bill, col 742, 15 February 1994.

96 Jennifer Willott Hansard HC Public Bill Committee: C&JB, col 481, 3 March 2009.

97 Nussbaum, MC Cultivating Humanity: A Classical Defence of Reform in Liberal Education (Cambridge, MMA: Harvard University Press 1997) p 8.Google Scholar A rich analysis of Nussbaum's writings and critique of pornography has recently been provided by McGlynn, C and Ward, I Pornography, pragmatism, and proscription’ (2009) 36 Journal of Law and Society 327.CrossRefGoogle Scholar

98 McGlynn and Ward, ibid, at 338–339; Nussbaum, above n 85, p 10.

99 Nussbaum, ibid.

100 Ibid, p 238.

101 McGlynn and Ward, above n 97, at 342 and see at 341.

102 Although I have argued that criminalisation of possession can be justified on the basis that possessors are reinforcing the primary harm caused by creators/distributors (see above, n 75), it is much more problematic to apply this in the context of completely fabricated NPPIC.

103 See ‘Yard officers seek more help to fight child pornography’The Times 4 April 1988; ‘Labour backs Hurd on child pornography’The Times 17 October 1987; ‘Obscenity call’The Times 8 October 1987. See also Williams, above n 80, at 256.

104 See generally MD Dubber ‘The possession paradigm: the special part and the police power model of the criminal process’ in Duff, RA and Green, SP (eds) Defining Crimes: Essays on the Criminal Law's Special Part (Oxford: Oxford University Press, 2007) p 91 at p 96.Google Scholar

105 Explanatory Notes, above n 79, para 855.

106 In Atkins v DPP[2000] 1 WLR 1427, the Court of Appeal held that the offence of possessing indecent photographs of children was not made out where images viewed on the internet had been stored in the computer's cache without Atkins' knowledge. See also R v Collier[2005] 1 WLR 843.

107 Hansard HC Public Bill Committee: C&JB, col 484, 3 March 2009. See also Eneman et al, above n 70, pp 2 and 7.

108 [2002] EWCA Crim 747.

109 See J Rowbottom ‘Obscenity laws and the internet: targeting the supply and demand’[2006] Criminal Law Review 97 at 99.

110 See R v Smith, R v Jayson[2002] EWCA Crim 683, [2003] 1 Cr App R 212; Akdeniz, Y Internet Child Pornography and the Law: National and International Responses (Aldershot: Ashgate, 2008) pp 5061 and 55–57Google Scholar; Ost, above n 10, pp 55–56.

111 See also Friel, SL Porn by any other name? a constitutional alternative to regulating “victimless” computer-generated child pornography’ (1997) 32 Valparaiso University Law Review 208 at 258.Google Scholar

112 I Dennis ‘Reverse onuses and the presumption of innocence: in search of principle’[2005] Criminal Law Review 901 at 904; M Blake and A Ashworth ‘The presumption of innocence in English criminal law’[1996] Criminal Law Review 314.

113 Dennis, ibid; Roberts, P Drug eealing and the presumption of innocence: the Human Rights Act (almost) bites’ (2002) 6 International Journal of Evidence and Proof 17.CrossRefGoogle Scholar

114 See R v Lambert[2001] 3 WLR 206 at [88].

115 See generally Dennis, above n 112, at 909–910.

116 Attorney-General for Hong Kong v Lee Kwong-kut[1993] AC 951 at 969: ‘If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable’: (per Lord Woolf at 969.)

117 R v Lambert, above n 114, at [36]; Dennis, above n 112, at 918.

118 BBFC Home Office Consultation: On Possession of Non-Photographic Visual Depictions of Child Sexual Abuse: The Response of the British Board of Film Classification (2007) para 10, available at http://www.bbfc.co.uk/downloads/pub/Public%20Statements/. See also Eneman et al, above n 70, p 1.

119 Consider, eg, that the Law Lords were especially concerned in R v Lambert that the maximum sentence for one of the offences under the Misuse of Drugs Act 1971 to which the defence in question (imposing a legal burden) applied was life imprisonment. See [38] and [156].

120 See also Clare McGlynn's response to the Home Office's consultation on the proposed offence, at paras 2.3.1 and 2.3.3, available at http://www.dur.ac.uk/resources/law/research/Child_Porn_Consult_Response.pdf.

121 [2003] 3 WLR 693.

122 Dennis, above n 112, at 922.

123 Above n 121.

124 At [16] per Field J.

125 See Lord Rodger's judgment in Sheldrake v DPP[2004] UKHL 43, [2005] 1 AC 264 at [68]–[69] and [71].

126 CJIA, s 63(6)(b).

127 McGlynn and Rackley, above n 2, p 252. For a similar argument in the context of indecency law, see M Childs ‘Outraging public decency: the offence of offensiveness’ (1991) Public Law 20. The NPPIC offence can also be critiqued because, if society considers the primary harm of child pornography to be that caused to the children involved, then the offence is framed around the wrong harm – a moral harm relating to offence, disgust and obscenity. In presenting the harm as moral, the offence arguably underplays the harm to children that NPPIC depicting real child sexual abuse, or featuring real children can cause.

128 Hansard HC Public Bill Committee: C&JB, col 485, 3 March 2009.

129 Home Office, above n 4, p 5.

130 Section 62(6).

131 That this question is a matter for the jury is made clear in the Explanatory Notes, above n 79, para 355.

132 Canadian Criminal Code, s 163.1(1)(a)(ii). The broad term ‘visual representation’ means that these provisions catch NPPIC besides real photographs of child pornography (see s 163.1(1)(a)).

133 US Code, § 2256(2)(A).

134 Adler, AThe perverse law of child pornography’ (2001) 101 Columbia Law Review 209 at 256.CrossRefGoogle Scholar For a similar critique of Canadian law, see Danay, RJThe danger of fighting monsters: addressing the hidden harms of child pornography law’ (2005) 11 Review of Constitutional Studies 151 at 158–159.Google Scholar

135 See Higonnet, A Pictures of Innocence: The History and Crisis of Ideal Childhood (London: Thames and Hudson, 1998) pp 161162.Google Scholar

136 Such as, for instance, one of the images that featured in the Canadian case of R v Nedelec[2001] BCSC 1334, of a child sat on the floor with her nightgown up and around her waist and her genital area in view (although here, the image was a photograph rather than a computer-generated image).

137 US v Knox 32 F.3d 733 (1994).

138 At 745 per Cowen J.

139 See US v Dost F.Supp. 828 (S.D.Cal.1986), in which a multi-factor list was articulated that can assist American courts in ascertaining whether an image constitutes the lascivious exhibition of a minor's genitals or pubic area. This list (the Dost test) does not include a nudity requirement.

140 Hansard HC Public Bill Committee: C&JB, cols 103–104, 5 February 2009.

141 Home Office, above n 4, pp 1 and 9.

142 Explanatory Notes, above n 79, para 368. See also Coroners and Justice Act Explanatory Notes (London: TSO, 2009) para 377.

143 Home Office, above n 54, p 10: ‘This [pornographic] test is intended to eliminate, for example, works of art…which are of public interest’.

144 As McGlynn and Ward ask: ‘What is pornographic and what is not?’: McGlynn and Ward, above n 97, at 331. See also McGlynn, above, n 120, para 6.2; BBFC, above, n 118, paras 4 and 5; Home Office, ibid, p 8. And, of course, the same question can be asked in respect of art. See Home Office, ibid, pp 17–18.

145 BBFC, above n 118. See also McGlynn, above n 120, paras 6.4.1 and 6.5. Home Office, above n 54, pp 8 and 9.

146 BBFC, ibid, para 7. See also ‘Graphic artists condemn plans to ban erotic comics’The Independent 23 March 2009.

147 Hansard HC Public Bill Committee: C&JB, col 105, 5 February 2009.

148 Ibid.

149 Human Rights Joint Committee Eighth Report. Legislative Scrutiny: Coroners and Justice Bill (London: TSO, 2009) para 1.172.

150 Explanatory Notes, above n 79, para 859.

151 Handyside v UK (1979–80) 1 EHRR 737.

152 Ibid, at 754 (emphasis added).

153 Kokkinakis v Greece (1994) 17 EHRR 397 at 423, para 52: ‘[Article 7 embodies] the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege ) and…it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable’.

154 See Ashworth, A Principles of Criminal Law (Oxford: Oxford University Press, 6th edn, 2009) p 66.Google Scholar

155 See Hashman and Harrup v UK (2000) 30 EHRR 241 at 258, para 39 and Ashworth, ibid, p 65.

156 Human Rights Joint Committee, above n 149, para 1.174.

157 Explanatory Notes, above n 79, para 15.

158 Hansard HC Deb, col 61, 26 January 2009. For parliamentary criticism about the size of the Bill, and the inclusion of too many subjects, see Hansard HC Public Bill Committee: C&JB, cols 3 and 4, 3 March 2009; Hansard HL Deb, cols 1209, 1210, 1223, 1225, 1248, 1252, 1261, 1270, 1276, 1288–1289 and 1292, 18 May 2009.

159 ‘Computer generated abuse “banned”, BBC News (28 May 2008), available at http://www.news.bbc.co.uk/go/pr/fr/-/1/hi/uk/7422595.stm.

160 Human Rights Joint Committee, above n 149, para 1.178.

161 Home Office, above n 4, p 1.

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Criminalising fabricated images of child pornography: a matter of harm or morality?
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